Practicing Law In Michigan: Can Non-Lawyers Do It?

In Michigan, the State Bar is the enforcement agency for the unauthorized practice of law (UPL). According to Michigan statute MCL 600.916, a person is prohibited from practicing law in the state unless they are licensed and authorized to do so. This includes appearing in court on behalf of another person, preparing and managing legal documents, and drafting wills and trusts. The Michigan Supreme Court has clarified that a person engages in the practice of law when they counsel or assist another in matters requiring legal discretion and profound legal knowledge. This leaves room for interpretation, as the statute does not provide a precise definition of practicing law. Out-of-state lawyers who wish to represent clients in Michigan may need to be granted temporary admission through the court's pro hac vice procedures, depending on the nature of the proceedings.

Unauthorized practice of law by out-of-state lawyers

In Michigan, the State Bar is the enforcement agency for the unauthorized practice of law (UPL). The State Bar will act on any complaints of UPL, and if these are substantiated, they will pursue a restraining order and contempt sanctions in court against the violator.

Out-of-state lawyers who are not licensed in Michigan are committing UPL if they attempt to represent clients in a local court. However, this does not apply to a person who is licensed to practice law in another state and is temporarily in Michigan, engaged in a particular matter.

The Michigan Supreme Court has held that a person engages in the practice of law when they counsel or assist another in matters that require the use of legal discretion and profound legal knowledge. This is a grey area open to interpretation. For example, a police officer telling a citizen that it is against the law to trespass is not unauthorized practice of law, as they are simply informing the citizen of the law. On the other hand, a tax preparer advising a client to file for bankruptcy may be engaging in the unauthorized practice of law, as they are counselling someone to take a specific action that requires substantial legal knowledge.

Courts have determined that the following situations constitute practicing law or engaging in the law business: appearing on behalf of another person in court, preparing and managing pleadings and papers for clients before judges and courts, and drafting wills and trusts.

What constitutes the practice of law?

The statute does not define what "practice law" or "engage in the law business" is, so the explanation is left up to common law. In Dressel v Ameribank, the Michigan Supreme Court held that "a person engages in the practice of law when he counsels or assists another in matters that require the use of legal discretion and profound legal knowledge".

This is a big grey area open to interpretation. For example, a police officer telling a citizen that it is against the law to trespass is not unauthorized practice of law because they are merely informing the citizen of what the law says. However, a tax preparer advising a client to file for bankruptcy may be unauthorized practice of law because they are counselling someone to take a course of action that requires substantial legal knowledge.

The Michigan Supreme Court has determined that there is no exception for wills, as they require profound legal knowledge to draft, they must be filed and administered by a court, and this is the weight of authority. The appearance on behalf of another person in court, as well as the preparation and management of pleadings and papers incident to legal actions on behalf of clients before judges and courts, also constitute the practice of law.

Michigan Court Rule 8.126 (A) contains a process for obtaining temporary admission and provides that an out-of-state lawyer participating in an arbitration may be permitted to appear and practice in a specific case in a court, before an administrative tribunal or agency, or in a specific arbitration proceeding in the state when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case.

Who can report UPL?

Michigan law has empowered the State Bar of Michigan to enforce UPL (Unauthorized Practice of Law). Anyone who suspects UPL can file a complaint with the State Bar. If an investigation into the complaint establishes its validity, the State Bar will pursue a restraining order and contempt sanctions in court against the violator.

Attorneys and judges also have an ethical duty to report any observed UPL to the State Bar. However, the statute does not define what constitutes "practice law" or "engage in the law business", leaving the interpretation up to common law.

The Michigan Supreme Court has ruled that "a person engages in the practice of law when he counsels or assists another in matters that require the use of legal discretion and profound legal knowledge". This ruling creates a grey area, as it is open to interpretation. For instance, a police officer informing a citizen that trespassing is illegal is not practising law, as they are merely stating the law. Conversely, a tax preparer advising a client to file for bankruptcy may be practising law without authorisation, as they are counselling a specific course of action requiring substantial legal knowledge.

Courts have determined that the following situations constitute practising law: appearing in court on behalf of another person, preparing and managing pleadings and papers for clients before judges and courts, and drafting wills and trusts.

What are the consequences of UPL?

Unauthorized Practice of Law (UPL) is a serious matter in Michigan. The consequences of UPL can be severe, and anyone who engages in UPL may face significant penalties. Michigan law has empowered the State Bar of Michigan to act as the enforcement agency for UPL. If a complaint is made to the State Bar and is substantiated after an investigation, the State Bar will pursue legal action against the violator. This may include seeking a restraining order and contempt sanctions in court.

Attorneys and judges have an ethical duty to report any instances of suspected UPL to the State Bar. The State Bar takes these complaints very seriously and will investigate the matter thoroughly. If the investigation reveals that UPL has occurred, the State Bar will take disciplinary action against the violator. This may include sanctions, fines, or other penalties. In some cases, the violator may even be criminally prosecuted.

The specific consequences of UPL can vary depending on the severity of the offense and the circumstances in which it occurred. For example, if a non-lawyer represents a client in court or provides legal advice without being licensed to do so, this would be considered a serious offense and could result in significant penalties. On the other hand, if someone engages in UPL unknowingly or due to a misunderstanding, the consequences may be less severe.

It's important to note that UPL is not limited to individuals who knowingly and intentionally practice law without a license. UPL can also occur when someone provides legal advice or assistance that requires the use of legal discretion and profound legal knowledge, even if they are not aware that their actions constitute the practice of law. As such, it is crucial for individuals to seek legal advice and representation only from licensed attorneys to avoid any potential consequences of UPL.

What is the process for obtaining temporary admission to practice law in Michigan?

To obtain temporary admission to practice law in Michigan, an attorney must be licensed to practice law in another US state or territory, the District of Columbia, or a foreign country. They must also be a member in good standing of their local bar association and cannot be disbarred or suspended in any jurisdiction.

The process for obtaining temporary admission is outlined in Rule 8.126 of the Michigan Court Rules. The out-of-state attorney must be associated with a Michigan attorney who is an active member of the State Bar of Michigan. The Michigan attorney must file an appearance and a motion seeking permission for the temporary admission of the out-of-state attorney. This motion must be supported by a current certificate of good standing from the jurisdiction where the out-of-state attorney is licensed and eligible to practice.

An out-of-state attorney may be temporarily admitted to practice in Michigan in no more than five cases in a 365-day period. Permission to appear and practice is at the discretion of the court, administrative tribunal, agency, or arbitrator and may be revoked at any time for misconduct.

There is an exception to the requirement to associate with local counsel for applicants who can establish to the satisfaction of the court that they are appearing for the limited purpose of participating in a child custody proceeding involving an Indian child and representing an Indian tribe. In such cases, the applicant must present an affidavit from the Indian child's tribe asserting the tribe's intent to intervene and participate in the state court proceeding and averring the child's membership or eligibility for membership under tribal law.

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